Public employee unions near-death in Supreme Court

April 2, 2016
Peter Scheer

Peter Scheer

OPINION by PETER SCHEER

Public employee unions, the most powerful special interest group in California and most other states, came within a heartbeat of losing that power, as a legal challenge by dissident public school teachers came to a close in the U.S. Supreme Court this week.

I use the word “heartbeat” somewhat literally, because it is all but certain that Justice Antonin Scalia would have cast his vote to create a 5-4 majority in favor of the teachers’ First Amendment argument in Friedrichs v. California Teachers Assn. As it was, the remaining eight justices split 4-4, with the consequence that the court of appeals’ pro-union decision was left standing. (Legally speaking, it’s as though there had never been an appeal to the Supreme Court).

The issue before the Supreme Court was whether the compulsory funding mechanism common to all government unions–those representing teachers, police, firefighters, prosecutors, and more, both at the state and local levels—was unconstitutional.

How so? Because, claimed the teachers, requiring workers to pay dues to their union compels  workers to back the union’s political stands, in violation of the First Amendment’s free speech clause. (Interestingly, this is essentially the same “coerced speech” argument that Apple made to oppose a court order directing that it write code to weaken security of the iPhone).

The dissident teachers urged the Court to overturn a 1977 precedent and rule that, because all activities of government unions—even salary and benefit negotiations—raise controversial political issues, the First Amendment requires that ALL dues payments must be optional. Not just a portion of dues payments (for political contributions, lobbying and such, for which workers have long been able to claim refunds), but ALL dues payments.

Now you can see why the Friedrichs case was a near-death experience for public sector unions. However, union leaders should not mistake their temporary good fortune for vindication. Public opinion has turned strongly against them, as citizens realize that escalating pension and healthcare obligations—negotiated in secrecy by union-backed elected officials—are unsustainable. There are limits to voters’ willingness and ability to pay for employee benefits that they themselves don’t have (and wish they did). Those limits have been reached.

The non-decision in the Friedrichs case is a reprieve for government unions, not a salvation. The First Amendment challenge to compulsory dues will resurface. New suits could be brought under the free speech clauses of state constitutions. And except in the states covered by the 9th Circuit Court of Appeals, the federal courts remain open to renewal of First Amendment claims modeled on the Friedrichs litigation.

There’s no predicting how the Supreme Court, with a full complement of nine justices, would decide free speech arguments against compulsory union dues. Merrick Garland, President Obama’s nominee to the Court, is a moderate democrat, strong on First Amendment rights, who, if appointed, could go either way. Because First Amendment issues often cut across partisan lines, a more conservative nominee cannot be counted on to vote against the unions; likewise, a more liberal nominee could produce an unpleasant surprise for democrats.

Public employee unions are at an inflection point. They can choose business as usual, trying to maintain political dominance through campaign contributions and secrecy. Alternatively, they can embark on a strategy of winning back rank-and-file and public support, and doing so through persuasion in free and open debate. This strategy worked pretty well for these unions in the 1950s and 60s, when their agenda was more in sync with the desires of voters.

Over the long term, it is the unions’ only viable strategy.

Peter Scheer, a lawyer and journalist, is executive director of First Amendment Coalition.


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24 Comments

  1. Casinogal says:

    I say if you don’t pay, you don’t play. I agree that those who do not pay the dues should be cut out of any benefits the unions get for the general group.
    The employees who are getting the benefits that the unions got them do NOT know what it was like without any benefits at all.
    Coming from coal mining country, those men (including my uncles and cousins) would work from dawn to dust down in the pits, coming home covered in coal dust. If you didn’t work in the mines, you probably didn’t work. And in many instances you lived in a ‘company town’, i.e. you lived in company housing, bought your food from a company store, etc.
    Not until John L Lewis came along and organized the men,did the unions get the men some relief.
    How would you like to wind up with black lung disease, no insurance, and living with your children and grandchildren?
    Unions have their faults, I do not deny that. But those people who are anti-union really don’t deserve to get the benefits that these unions have worked for.

    (0) 16 Total Votes - 8 up - 8 down
  2. CentralcoastRN says:

    Do you all remember a story where a fire department let a homeowners house burn because he didn’t pay his fire department tax or whatever it was?

    http://youtu.be/W3SSPPUTu1I

    The non paying family didn’t want to pay the fee, thinking they would never need fire department services. Why SHOULD they pay? Well, rather than force everyone to pay a fee for represention “just in case”, this is what happened. The house burned to the ground over $75.

    The issue with the Unions is very similar. You pay for represention. When the Union gets everyone a raise, they get EVERYONE a raise- not just the members. If something happens and layoffs occur, should the Union only fight for MEMBER jobs, or for all jobs?

    The firefighters stood by waiting just in case that fire jumped to homes that had “paid for spray.” The Unions didn’t want to act so stupidly.

    I bet Disney workers wished they had a Union rep to call as they trained their H1-B replacements from Pakistan.

    I am glad I had a Union rep to call the rare occasion a doctor thought to talk to me with disrespect for daring to disturb him to tell him his patient that just had $100k in surgery was having some problems because I am awesome and catch problems early. That surgeon has better statistical outcomes because of staff like me. I can effectively protect patients because of Union protection.

    I LOVE Unions all day long.

    (2) 24 Total Votes - 13 up - 11 down
    • CentralcoastRN says:

      If you hate Unions then work at a place that doesn’t have Unions. Otherwise. PAY the dues.
      Union dues are like any insurance– you won’t need it often, but when you DO OMG it is good to have one!

      (3) 23 Total Votes - 13 up - 10 down
  3. SLO_Johnny says:

    The Supreme Court will shift to a 5 to 4 liberal majority as soon as the next Justice is seated on the court. The Senate can’t delay the Democrats forever and there is no way that any of the Republican presidential nominees will win in November. There will be a new justice who will be appointed by Obama or Hilary/Bernie.

    (2) 20 Total Votes - 11 up - 9 down
  4. achillesheal says:

    They are like cockroaches…nuclear holocaust couldn’t kill the public employees unions.

    (5) 31 Total Votes - 18 up - 13 down

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